UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JIMMY EUGENE RHODES, Defendant - Appellant. No. 17-6096 (D.C. Nos. 5:16-CV-00799-R and 5:01-CR-00202-R-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BALDOCK , and HARTZ , Circuit Judges.

________________ _________________ Jimmy Rhodes appeals the district cour t’s denial of his 28 U.S.C. § 2255 motion. Exercising jurisdiction unde r 28 U.S.C. § 2253(c), we affirm.
I In 2002, Rhodes was convicted in fe deral court of several drug and firearm offenses. A Presentence Investigation Re port (“PSR”) indicated that Rhodes was subject to a fifteen-year mandatory mini mum under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). It identified a prior conviction for shooting with intent to kill and two prior convictions for second degree burglary, all in Oklahoma state court. At sentencing, the district court asked defense counsel whether he

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 23, 2018
Elisabeth A. Shumaker Clerk of Court2 disagreed with the ACCA e nhancement “based on the defe ndant’s prior convictions” and counsel responded that he had no objecti on. The district court adopted the PSR. It imposed a total sentence of 260 months. Neither the PSR nor the district court explicitly stated which clau se of ACCA was applied. 1 We affirmed on direct appeal. United States v. Rhodes, 62 F. App’x 869, 870 (10th Cir. 2003) (unpub lished). Rhodes did not raise a ny sentencing issues. He then filed a § 2255 habeas motion arguing ineff ective assistance of counsel, which was denied. We did not grant a COA. United States v. Rhodes, 157 F. App’x 84 (10th Cir. 2005) (unpublished). Following the Supreme Court’s decisi on in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the resi dual clause of ACCA, we granted Rhodes authorization to file anothe r habeas motion to raise clai ms based on Johnson. In his motion, Rhodes argued that his sentence wa s invalid because his prior convictions were considered under the residual clause of ACCA. The district court stated that “the record does not support his contentio n” and concluded that Rhodes was not actually raising a Johnson clai m. It dismissed his motion as untimely. Rhodes appealed, and we granted him a certificate of appealability.

1 At the time of Rhodes’ sentencing, a prior conviction c ould qualify as a violent felony for ACCA purp oses under three separate clau ses: the elements clause, which includes felonies that ha ve “as an element the use, a ttempted use, or threatened use of physical force against the pers on of another,” § 924(e)(2)(B)(i); the enumerated offense clause, whic h covers “burglary, arson, or extortion, [or] involves use of explosives,” § 924(e)(2)(B)(ii); or the residual clause, which encompassed felonies that “otherwise i nvolve[] conduct that presents a serious potential risk of physical injury to a nother,” § 924(e)(2)(B)(ii).3 II In a § 2255 appeal, we “review the distri ct court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotati on omitted). As relevant here, a habeas motion must be filed within one year of “the date on which the judgment of conviction becomes final” or “the date on which the right asserted was initially recognized by the Supreme Court, if that ri ght has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” whichever date is later. § 2255(f)(1), (3). The district court conc luded that, because Rhodes failed to show his ACCA enhancement was imposed under th e residual clause, he was not actually asserting a claim under J ohnson and that decision di d not provide him a new limitations period. After briefing in this appeal was comple te, we issued an opinion holding that “to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly recognized right, regardless of whether or not the facts of record ultimately support the movant’s claim.” Unite d States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017). We ordered supplemental briefing on the impact of Snyder. In light of that decision, the government concedes that Rhodes’ motion is timely. Although Snyder establishe s that Rhodes motion is timely, it also fatally undermines his claim. As we explained in that case, “it may be possible to determine that a sentencing court did not rely on th e residual clause—even when the sentencing record alone is unclear—by looking to the relevant background le gal environment at4 the time of sentencing.” Id. at 1129 (quo tation omitted). If a sentencing court did not rely on the residual clause, a Johnson cl aim necessarily fails because the Supreme Court did “not call into que stion application of [ACCA] to the four enumerated offenses, or the remainder of [ACCA’s] defin ition of a violent fel ony.” 135 S. Ct. at 2563. At the time Rhodes was sentenced, our court had repeatedly held that Oklahoma second degree burglary qualified as an enumerated offense if underlying documents indicated that th e defendant burgled a building. See United States v. Green, 55 F.3d 1513, 1515-16 (10th Cir. 1995) ; United States v. Hill, 53 F.3d 1151, 1153-55 (10th Cir. 1995) (en banc); Unite d States v. Amos, 984 F.2d 1067, 1070-71 (10th Cir. 1993). 2 Rhodes’ PSR and the government ’s ACCA notice (to which state court documents were attached) indicate that Rhodes was convicted of burgling homes. We are not directed to any prior decision considering th e Oklahoma statute at issue under the residual clause. To the c ontrary, we declined to analyze whether Oklahoma second degree burglary involved “seri ous potential risk of physical injury to another” in Amos because we concl uded the crime “meets the Taylor court’s

2 To qualify as an enumerated offense, a state statute must comport with the “generic” definition of the crime: “an unlawful or unprivileged entry into, or remaining in, a building or othe r structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). C ourts apply the categorical approach in considering whether a prior offense qualifie s, but may look to state court documents in a narrow range of cases to determine wh ether a defendant was convicted of generic burglary despite an otherwise overbroad stat ute. Id. at 602. We express no opinion as to whether our prior cas es remain good law following the Supreme Court’s more recent clarifications regardi ng the so-called “modified cat egorical approach.” See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).5 definition of burglary” under the enumerated offense clause and t hus “qualifies as a ‘violent felony.’” 984 F.2d at 1071. As in Snyder, “there would have been little dispute at the time of . . . sentencing that” Rhodes’ burgl ary convictions constituted enumerated offenses. 871 F.3d at 1129. Accordingly, his “Johnson clai m must fail because the district court’s ACCA[] determination at the time of sent encing rested on the e numerated [offense] clause rather than the residual clause.” Id. at 1130.
III AFFIRMED

.
Entered for the Court

Carlos F. Lucero Circuit Judge